Time to reconsider cops' 'deadly force'?

By Mark O'Mara

updated 8:49 PM EST, Mon December 8, 2014

Protesters march in Ferguson, Missouri, on Thursday, August 21. The St. Louis suburb has been in turmoil since a white police officer, Darren Wilson, fatally shot an unarmed black teenager, Michael Brown, on August 9. Some protesters and law enforcement officers have clashed in the streets, leading to injuries and arrests.

A crowd gathers in Ferguson on August 21. With the situation appearing to calm, Gov. Jay Nixon ordered the Missouri National Guard to begin withdrawing from the city.

Police escort a Wilson supporter to a police vehicle, away from crowds protesting Brown's death on Wednesday, August 20. Police have said Brown and Wilson struggled over the officer's gun; some witnesses said Brown had his hands in the air when he was shot.

Lightning streaks over protesters on August 20.

Demonstrators protest on August 20.

U.S. Attorney General Eric Holder meets with Capt. Ron Johnson of the Missouri State Highway Patrol at a Ferguson restaurant on August 20. Holder came to Missouri to talk to community leaders and review the federal civil rights investigation into Brown's shooting.

Protesters march through the streets of Ferguson on August 20.

Police point out a demonstrator who has his arms raised before moving in to arrest him Tuesday, August 19.

People watch from inside a restaurant as protesters rally August 19.

Police arrest a demonstrator on August 19.

Police charge into the media work area with weapons drawn as they try to control demonstrators on August 19.

A protester speaks to a police officer on August 19.

People on August 19 stand near a memorial where Brown was shot and killed.

Protesters march on August 19.

Police watch as protesters march August 19.

A demonstrator is arrested on August 19.

Police try to control protesters on Monday, August 18.

Police lead a man away during a protest August 18.

A demonstrator shouts during a protest on West Florissant Avenue, one of Ferguson's main streets, on August 18.

Capt. Ron Johnson of the Missouri State Highway Patrol pulls his men back from aggressive protesters on August 18.

Police arrest a demonstrator August 18 after peaceful protests gave way to angry confrontations with authorities.

Law enforcement officers stand guard during a protest on West Florissant Avenue on August 18.

A woman helps a man affected by tear gas August 18. The situation overnight deteriorated after a handful of protesters threw rocks, bottles and Molotov cocktails at police. Officers responded by firing stun grenades and tear gas canisters.

Officers stand with weapons drawn during a protest on West Florissant Avenue on August 18.

Musician Nelly, center, joins demonstrators in Ferguson on August 18.

Demonstrators receive red roses as they protest August 18.

Demonstrators march on August 18.

The Rev. Jesse Jackson shakes hands with a police officer as he visits Ferguson's demonstration area on August 18.

A protester picks up a tear gas canister on Sunday, August 17.

Police wait to advance after using tear gas to disperse protesters August 17.

Water gets poured into a woman's eyes after a tear gas attack by police on August 17.

A man runs through clouds of tear gas on August 17.

Protesters react as police fire tear gas at them August 17.

Police advance through a cloud of tear gas on August 17. Most of the crowd had dispersed after a curfew went into effect at midnight, St. Louis County authorities said.

People take cover from tear gas inside a McDonald's on August 17.

A large group of police officers advance toward protesters on August 17.

A man fights the effects of tear gas in Ferguson on August 17.

Michael Brown Sr. and Lesley McSpadden, the parents of Michael Brown, attend a rally at Greater Grace Church in Ferguson on August 17.

The Rev. Al Sharpton hugs McSpadden during the rally.

Capt. Ron Johnson of the Missouri State Highway Patrol speaks at the rally. He had been appointed by the governor to take control of security operations.

Demonstrators defy a curfew early on August 17.

Police fire tear gas at demonstrators after curfew on August 17.

A law enforcement officer aims his rifle August 17 after tear gas was fired to disperse a crowd.

People scramble as police fire tear gas on August 17.

Law enforcement officers check a building on August 17.

People attend a protest after the midnight curfew on August 17.

A law enforcement officer watches as tear gas is fired to disperse a crowd on August 17.

Police stand guard before the midnight curfew on Saturday, August 16.

People loot the Ferguson Market and Liquor store on August 16. Several businesses were looted as police held their positions nearby.

Missouri State Highway Patrol officers listen to taunts from demonstrators during a protest on Friday, August 15.

Demonstrators protest with their hands up on August 15. The "hands up" gesture has become a symbol in protests as Brown, according to eyewitnesses, was trying to surrender when he was shot multiple times.

Police confront demonstrators on August 15.

A demonstrator throws a tear gas canister back at police on August 15.

Police confront demonstrators on August 15.

Thousands of demonstrators march down a Ferguson street with members of the St. Louis County Police and the Missouri State Highway Patrol on Thursday, August 14.

Demonstrators hold signs as traffic moves slowly past them on August 14.

State Highway Patrol Capt. Ron Johnson smiles at demonstrators on August 14. Johnson was appointed to lead security as state troopers took over after days of clashes between protesters and local police.

The Rev. Traci Blackmon uses a megaphone to talk to a large group of demonstrators on August 14.

A man picks up a flaming bottle and prepares to throw it as a line of police advance in the distance on Wednesday, August 13.

Police stand in clouds of smoke as they clash with protesters on August 13.

An Al-Jazeera television crew runs for cover as police fire tear gas at its position on August 13. Video and images on social media showed police later breaking down the journalists' gear.

He says Wilson's defense will likely argue he was using necessary force on fleeing felon

Supreme Court says cops have right to use deadly force if fleeing felon poses danger

O'Mara: It's time to reassess laws that result in needless deaths in a biased system

Editor's note: Mark O'Mara is a CNN legal analyst and a criminal defense attorney. The opinions expressed in this commentary are solely those of the author.

(CNN) -- Several recent high-profile cases involving cops who have shot civilians have acquainted us with the nuances of self-defense, deadly force and the standard of "reasonable fear of imminent great bodily harm or death."

This is the threshold for justifiable homicide for civilians, and so far it has also been the focus of the inquiry into whether Ferguson, Missouri, police officer Darren Wilson acted appropriately in firing his gun in the direction of Michael Brown and killing him.

Mark O'Mara

When cops shoot to kill the mentally ill

However, for law enforcement officers -- the men and women we count on to stop crime and apprehend criminals -- the threshold for use of force, including deadly force, is much broader than for civilians.

The question is: Are cops allowed to shoot people who are resisting or fleeing felony arrest? The answer is "maybe."

If Wilson faces charges in the shooting of Michael Brown, I'll bet his legal team will not solely go with a self-defense argument: They'll also claim that Wilson was using necessary force to arrest a fleeing felon.

It will likely be argued that Brown posed a significant threat to Wilson. Their interaction at the police car, if it included Brown striking Wilson as has been alleged, would have turned Brown into a felon in Wilson's eyes and shown evidence that he was willing to inflict physical harm.

Should evidence support the fight over the gun, Wilson's belief of the danger of engaging Brown would be increased. That's the law in Missouri, and it's consistent with laws in states across the country.

You may think this is not appropriate, but Wilson has the affirmative obligation to do what is necessary to arrest. That's not his right, that's his job. And it's a job we gave him, and all other law enforcement officers, when we started passing the "fleeing felon" statutes.

Back in the '70s, the United States went on a "tough-on-crime" kick. As part of the clampdown, states began adopting "fleeing felon" statutes -- laws that authorized the use of force, including deadly force, to stop suspected felons from evading capture. As a society, we basically agreed that we'd prefer to shoot a suspected felon rather than let him go.

Not surprisingly, police shootings increased, and tragic incidents arose in which people were shot as fleeing felons, even though the officer's safety was not jeopardized.

'Eyewitnesses are horrible witnesses'

App: Audio near time of Ferguson shooting

Analyzing the Michael Brown audio

In 1984, a young black man named Edward Garner was fleeing a police officer who responded to a "prowler inside call." When Garner tried to scale a fence to elude capture, the officer shot Garner in the back of the head, and he died. He had stolen $10 and a purse.

Initially, the shooting of Garner was found to be justified. Challenges to the ruling eventually bumped the case up to the U.S. Supreme Court. In the case of Tennessee v. Garner 471 U.S. 1(1985), the Court decided that fleeing suspects should not be shot for trying to escape -- unless an arresting officer reasonably believes the fleeing person poses a "significant threat of death or serious physical injury to the officer or others." In that case, the officer has the right, and maybe the obligation, to use deadly force.

This is the authority we give to our cops. This is the standard we put in place to determine if a police shooting is justifiable. But in the wake of the Michael Brown shooting, it may be time to ask ourselves: Is this really a standard we are willing to accept?

I believe the time has come to focus, not only on the inherent, undeniable biases that exist in our criminal justice system, but also on those particular laws that result in tragic deaths within that biased system.

Cops are doing the job we told them to do. Through our laws, we have mandated that they arrest suspected felons, and we've told them to use deadly force if necessary. Take away these "fleeing felon" laws, and then we can tell the Officer Wilsons to keep their guns holstered. We can tell them that we'd rather have some felons get away than suffer the tragedy of witnessing one more young man, like Michael Brown, being shot and killed.

But remember: When we hamper law enforcement's abilities to use force they believe necessary, we allow more dangerous felons to walk the streets. We embolden them with the knowledge that they can continue to commit crimes against us: all they have to do is outrun a cop they know can't shoot.